Volume 55 — Colorado Reports

<p>1. Taxation — Assessments—A tax upon property is of no validity unless supported by a valid assessment.</p> <p>Only an officer, de jure are de facto, authorized by law, can make such assessment.</p> <p>2. -Legislative Power — The general assembly exercises supreme control over the collection of the public revenues, Save as their powers are limited by the constitution.</p> <p>3. State Board ojt Equalization — To* Commission — Powers of — ■ The power of original.assessment previously conferred by statute upon the State Board of Equalization was taken away by chapter 216 of the acts of 1911. By that statute the powers and privileges theretofore exercised by that board are vested in the State Tax Commission, as of the date when the act took effect.</p> <p>The effect of the constitutional amendment providing for the initiative and referendum, upon the date when the statute became of force, not decided.</p> <p>The supervisory powers of the board over the work of the state tax commission are expressly limited by the statute to a certain date. Since that date the State Tax Commission acts independently of the State Board of Equalization.</p> <p>The power and duty of equalization are vested in the State Board-of Equalization, and are not affected by the statute.</p> <p>4. Constitutional LawI — Statute Unconstitutional in Part — A statute which, though containing, provisions opposed to the constitution, remains, after rejecting these, complete, and capable of enforcement, according to the manifest intent of the legislature, must be sustained.</p> <p>'Effect given to the legislative assertion of this rule in the statute.</p> <p>5. -Particular- Statutes- — Chapter 216 of the acts of 1911 in nowise assumes to confer upon the tax commission the provisions of a former enactment by mere reference to its title, and is not in violation of either the letter or spirit of sec. 24, of art. V, of the constitution.</p> <p>6. Executive. Questions — When the Court will Respond To— Under see. 3 of art. VI of the constitution the court is not required to respond to a question as to the effect and rank of an appropriation for an administrative body not yet appointed.</p> <p>But to end doubt and controversy the court declared that the appropriation for the salary and expenses of the state tax commission (acts 1911, c. 216, § 46) is of the first class.</p>

<p>1. Constitutional Law — Who May Assail Statute for Unconstitutionality — W,hen mandamus is instituted against a ministerial or executive officer, to compel performance of what is alleged to be a duty prescribed by statute, he may question the constitutionality of the enactment.</p> <p>2. -Particular Statutes — The act of May 11th, 1911, (Laws 1911, c. 227) assuming to make an appropriation of public money for the purpose of conducting an investigation by a committee of its own members, as to the measures necessary to be taken for the protection of certain property rights of the state, is void as an attempt to confer executive power on members of the legislative department in violation of article III of .the constitution.</p> <p>3. Public Waters — Rights of the State — Power of Legislature to Protect. The natural streams of Colorado are non-navigable. Their entire volume is made up of the rains and snow which fall upon its surface. The state was therefore justified in asserting (Const, art. XYI § 5 its ownership of all,these natural streams. Congress in the enabling act, and the President in proclaiming the admission of the state must be assumed to have been aware of the situation, and to have consented to the assertion of title so made by the state.</p> <p>That the general assembly -has the power, and is charged with the duty to protect the interest of the state in the natural streams, cannot be questioned. The public moneys may be appropriated for the protection and defense of the rights of the state, and its citizens, in these waters.</p>

<p>1. Criminal Law — Record of Conviction —Amendment — The amendment of the record, of a criminal conviction is in the discretion of the court where such conviction was had, subject to review for any abuse of discretion.</p> <p>The testimony upon which the' amendment was sought being contradicted, the court declined to disturb the result.</p> <p>2. -Statute of Limitations — The statute of limitations is a defense. The exceptions to the course of the statute expressly provided therein, need not be noticed in the information. The prosecutor may aver the facts which talce the case out of the statute, when the statute is pleaded. An information otherwise sufficient but showing upon its face that more than the statutory period has elapsed since the commission of the offense charged, is sufficient to sustain a conviction.</p>

<p>1. Negligence — Evidence—Prior Accidents — Laying Foundation. Where in an action against a municipal corporation for an injury sustained by a pedestrian, by reason of a fall upon the public walk, attributed to the condition of the walk, the plaintiff would, to establish the negligence of the defendant, give evidence of prior accidents to others at the same place, he must first show affirmatively that these prior occurrences were under substantially like conditions, both as to the walk, and the persons who sustained the injury. Diamond Rubber Go. v. Harryman, 41 Colo. 415, followed and approved. Colorado v. Rees, 21 Colo. 435 distinguished.</p> <p>2. Municipal Corpoeations — Sidewalk—Excessive Inclination— Effect. That a sidewalk is laid and maintained with an inclination exceeding that prescribed by ordinance is not negligence per se, on the part of the municipality, but mere evidence of neglignce, of the effect of which, taken in connection with the other evidence, the jury are to judge.</p>

<p>1. Interstate Commerce — Contracts Controlled by the Act of Congress. The contract of an express company for carriage of goods from one state to another is controlled by the Interstate Commerce Act. Adams Co. v. Croninger, 226 U. S. 491 followed.</p> <p>2. Common Carriers — Contracts Limiting the Liability of the Carrier, to a sum fixed by the value of the article as declared by the shipper, are, when fair, open, reasonable, and made for the purpose of obtaining the lower of two or more rates, valid. Wells, Fargo & Co. v. Neimaiv-Marcus Co., 33 S. C. Rep. 267, followed.</p> <p>Tbe express company had filed with the Interstate Commerce Commission a table of its rates, graduated according to the value of the shipment. If the article was of a value exceeding fifty dollars the rate was higher than if it was fifty dollars or less. The shipping-clerk of the consignor was perfectly familiar with this rule of the express company, and knew that if a value exceeding fifty dollars was declared a higher rate would be charged than if the value was no more than fifty dollars. The agent of the express company who received the package did not ask its value, or .tbe contents, and the shipping clerk made no statement in respect thereto, but accepted a receipt stating that the shipment was valued at fifty dollars, that the liability of the company “is limited to fifty dollars unless a greater value is stated in this receipt”, and that “the party accepting this receipt hereby agrees” to its conditions. Held that for the loss of the package the consignee could recover no more than fifty dollars.</p>

<p>1. Evidence — Res Gestae, may be defined as matter incidental to the main fact, and explanatory thereof, including acts and words so closely connected therewith as to constitute part of it; the circumstances, facts, and declarations, which spring out of the main fact, are contemporaneous with it, and serve to illustrate its character.</p> <p>In the trial of an information for wilful murder the declarations of a third person, made shortly after the homicide, and attributing it to the accused, are not res gestae.</p> <p>2. -Preliminary Proof. One offering an extra judicial declaration must, as a condition precedent to its admission, establish whatever is necessary to qualify it as evidence.</p> <p>3. -Declarations — Involuntary—Made in Sleep, are not competent evidence against the declarant, to charge him with the crime which the declaration tends to confess. "Where the evidence shows beyond doubt that at the time of making the declaration the party was sleeping and unconscious, the court should exclude it. Where there is question whether he was conscious or unconscious it should be left to the jury under instructions.</p> <p>4. Criminal Law — Waiver of Objection hy Accused to Incompetent Testimony. Even one accused of homicide may effectually consent to the admission of incompetent testimony.</p> <p>5. " Practice in Supreme Court — Duty of Counsel. The citation of many decisions of the courts of other jurisdictions,-without noticing decisions of our own courts by which the question is already set at rest, disapproved.</p>

<p>Error to Arapahoe District Court. — Hon. Charles McCall, Judge.</p>

<p>1. Statutes — Construed—Taxes are due only at the time specified in the statute (Rev. Stat. Sec. 5537), though payable at the option of the tax payer at an earlier date.</p> <p>Under Rev. Stat. Sec. 6734 the owner of a parcel of lands within the description set down in the statute may maintain a petition to disconnect it from the city or town within which it is included, even though taxes levied thereon but not yet due within sec. 5537 are unpaid. The latter statute is not to be so construed as to discriminate against the petitioners in such case, and compel them to pay taxes before others are required to do so.</p> <p>That the lands are subject to mortgage does not impair the petitioner’s right.</p> <p>2. Municipal Coepobations — Disconnection of Border Lands — The statute permitting the owner of lands of a certain area, upon .the border of the town to procure the disconnection thereof from the town is mandatory.</p> <p>3. Mortgage of Lands — Effect—Tile mortgagor of lands is still the owner thereof, notwithstanding the mortgage. (Rev. code Sec. 280.)</p> <p>4. Words and Phrases — “Due"—“Owing”—“Payable”-—Construed.</p>

<p>Error to Denver District Court. — Hon. George W. Allen, Judge.</p>

<p>Error to Denver District Court. — Hon. Jambs H. Teller, Judge.</p>

H. P. Burke, Judge. The parties to this proceeding were divorced at the suit of plaintiff, in error, based upon the ground of cruelty of the defendant in error. The decree awarded the sole .care, custody and control of their daughter (a minor) to the plaintiff. The decree made no provision for the support of the daughter.

<p>1. Statutes — Construed—Civil Service Act — A statute (Rev. Stat. e. XXVI) provided for the appointment of commissioners of the civil service; for an examination of those applying for appointment in such service; (sec. 3) that the commission “may appoint a secretary who shall be chief examiner”, and “superintend any examination under this act”; and (sec. 4) that the commissioners “may designate one of their number to act as examiners, or one or more persons in the service of the state, or of any municipality affected by the act” &c. A later act amended section 3 so as to provide that the employees of the commission should be "a secretary and chief examiner, and such examiners, stenographers and other assistants as the commission may deem necessary”. Held, that under the amendment the commissioners might appoint as examiner one not of their number, nor of the class designated in sec. 4; that the purpose of the amendment was to free the commission from inconveniences arising from insufficiency of assistance in the performance of its duties, or from the requirement that the secretary should attend every examination; that the appointment of one not of the class described in section 4 was not in violation of the the statute, or of a rule of the commission that questions propounded to candidates should be kept secret.</p> <p>2. Ceetioeabi — Administrative Body Exceeding Jurisdiction — The appointment by the civil service commission, as examiner, of one not of the class designated in the statute (Rev. Stat. Sec. 617), and an examination by such examiner, is not an excess of jurisdiction., Certiorari thereto by a dissatisfied candidate quashed.</p>

<p>1. Judgment — Relief in Equity■ — Equity will not relieve against a judgment where the aggrieved party is entitled to an appeal or writ of error,- e. g. where judgment was given, after, as contended, the term had been regularly adjourned, an appeal had been allowed and perfected, and afterwards dismissed without prejudice, for .want of prosecution.</p>

<p>1. Fraud — Evidence—The holder of a promissory note secured by a trust deed of lands procures.the public trustee to make sale of the lands, without notifying him of a change in the 'address of a junior encumbrancer, mentioned in the deed of trust. The omission is no evidence of fraud or conspiracy.</p> <p>2 Deed of Trust — iNotice to Subsequent Encumbrancer, at the address given in the deed of trust, is a compliance with the statute. (Rev. Stat. §6864.)</p> <p>3. ——Subsequent Encumbrancer — Duty—It is the duty of a junior encumbrancer of land who has notice of a prior deed of trust to keep advised as to proceedings which may be had thereunder, for the foreclosure thereof.</p>

<p>Error to the Ro%utt County Court. — Hon.' Charles A. «Morning, Judge.</p>

<p>Error to Denver County Court. — -Hon. Ira C. Rothgerber, Judge.</p>

<p>Constitutional Law — State Land Board — Income—Moneys received by the state land hoard from the sale of the state lands, or rentals or royalties, therefrom, or for interest on deferred intallments of purchase money, are not the income of the hoard within the meaning of section 9 of article IX of the constitution. Salaries or expenses of the board are not to he paid from these funds, but only from the fees and commissions authorized hy Rev, Stat. sec. 5172.</p> <p>Whether under the enabling act, and the constitution, any portion of the funds arising from the sale or rentals of the state lands, or interest thereon, can be used for discharging the expenses of the trust in relation thereto, not decided, there being no legislative authority for such application thereof.</p>

<p>Appeal from Gunnison District Court. — Hon. Theron Stevens, Judge.</p>

<p>Error to Garfield County Court. — -lion. R. J. Smith, Judge.'</p>

<p> Motion to Strike Brief and Additional Abstract. </p>

<p>1. Municipal Cobporations — Ordinance—Validity—An ordinance founded not upon a specific charter provision, but upon a general grant of authority will not be sustained unless reasonable, fair, and impartial.</p> <p>A statutory provision authorized municipalities to “license, regulate and tax, subject to any law of the state now in force or hereafter to be enacted, any lawful occupations, business places, amusements or places of amusement.”</p> <p>An ordinance enacted under this statute declared it unlawful for any person “to sell or offer to sell, as incident to or as part of their mode of carrying on business, any goods, &c., from any car, warehouse, &c., or other place not directly under his control, without being duly licensed.” The license fee exacted was $200 per month or $25 per day", for any period less than a month. Held, that the ordinance was unreasonable and void upon its face, because, (1) the license fee exacted was and was intended to be, prohibitive. (2) because it discriminates between citizens of the municipality and citizens of other states and communities.</p> <p>2. Constitutional Law — Personal Bights — It is the natural and constitutional right of every person to engage in and carry on any lawful business, subject only to reasonable regulations applying to all engaged in the same business. An ordinance or statute which prohibits a citizen from exercising his right in this respect, or unduly discriminates against him because he is not a taxpayer, or because he has no storehouse, warehouse or fixed place of business is void.</p>

<p>1. Biu, ojt Exceptions — When Necessary — Upon error brought to review a criminal conviction, errors assigned upon the giving or refusal of instructions will not be considered, unless the instructions complained of, and the exceptions thereto, are presented by bill of exceptions.</p> <p>2. Statutes — Construed—Section 3 of chapter 6 of the Laws of 1911, does not relieve the plaintiff in error in a criminal case of the necessity to preserve exceptions to the giving or refusal of instructions and to include instructions in the bill of exceptions. That statute provides that instructions shall be taken as part of the record, without bill of exceptions. Considering that the statute in question is largely a rescript of the provisions of the civil code; that only the sixth section of the act refers in terms to criminal prosecutions, that that section only assumes to repeal prior legislation touching appeals, and that an appeal from a conviction of crime was never allowed; that if the statute extends to criminal prosecutions it must be held to repeal section 1995 of the Revised Statutes which, as of right, entitles one under sentence of death to a supersedeas; that no provision is made in the act for admitting an accused person to bail, nor as to any of those matters which, from their nature, must, in criminal prosecutions be controlled by regulations differing from those applied to civil causes; that as to revisory proceedings the act speaks only of judgments for money, and judgments not for the payment of money, and is silent as to judgments imposing fines or imprisonment; that the act, without specifically saying so,- purports to be an amendment to the civil code. SelcL that the statute does not apply to criminal cases.*</p>

<p>Error to El Paso District Court. — Hon. J. W. Sheaeor, Judge.</p>

<p>Appeal from Las Animas District Court.- — Hon. Henry Hunter, Judge.</p>

<p>Error to Larimer District Court — Hon. James E. G-arrigues, Judge.</p>

<p>Error to Denver District Court. — Hon. Harry C. Riddle, Judge.</p>

<p>1. Life Insurance — Benefit Societies — Contract with Member— The contract of a fraternal benevolent society with its member, embodies, by necessary implication, the application for membership, the certificate of insurance, the charter and by-laws of the society, and the statutes of the state under which the society is organized.</p> <p>2. _ -Right of Assured — The assured has no interest in the insurance money. Even though he is the sole heir of the beneficiary, and survives him, the insurance money is no part of his estate. A power reserved to him to change the beneficiary is a mere naked power, to be exercised in conformity with the statutes of the state in which the society was organized, and' under which the certificate was issued.</p> <p>3. -Right of the Beneficiary — Where a power to change the beneficiary is not reserved, the one named in the certificate acquires a vested interest in the insurance, immediately upon the delivery of the certificate.. With such power reserved, the beneficiary takes a mere expectancy.</p> <p>4. ---Change of Beneficiary — The assured in a fraternal or mutual insurance association has no greater power to change the beneficiary in the policy than has the assured in an ordinary life policy, save as may be reserved to him by the certificate of insurance, in conformity with the statute of the state under which the society was organized. Where there is a conflict between the policy, and by-laws of the association on the one hand, and the charter, or the statutes controlling, on the other, the former must yield.</p> <p>The certificate of the member obligated the association to pay a specified sum to “W. S. F. or his lawful heirs” upon the death of the member, subject to the right of the member to substitute any other person within certain classes designated by the statute. Held that even though the assured survived the beneficiary, and was his sole heir, he had no power to designate by will, to receive the insurance, persons not of the classes prescribed by the statute, when there were, in being, persons of those classes, and that such attempted designation was without effect.</p> <p>5. -No Beneficiary Designated — Right of Action — The certificate named as the beneficiary “W. S. F. or his lawful heirs.” The assured survived the beneficiary and made no effectual designation of any qualified person to succeed such’ beneficiary. Held that those who would have been the lawful heirs of W. S. F., had he survived the assured, and who were of the class designated by the statute, as competent to take, were entitled to the fund.</p> <p>6. Payment into Court — Effect—A benefit society does not, by payment into court of insurance money which is in dispute, waive the provisions' of the statute under which the insurance was written. The deposit is no more than a request to the court to award the funds as equity and the law directs.</p>

<p>Appeal from Arapahoe District Court. — lion. Charles McCall, Judge.</p>

<p>1. Union Pacific Railboad Company — Bight of Way — Width— Under the act of congress of July, 1862 (12 Stat. 489) and the act of July 2nd, A. D. 1864 (13 Stat. 356), the right of way of Union Pacific Railroad Company as successor to the Leavenworth, Pawnee & Western Company, is, through lands which were public at the time of the definite location, everywhere 400 feet wide, even though never occupied to the full width.</p> <p>2. -Adverse Possession — Prior to the act of congress of June 24, A. D. 1912 (Acts 62 Cong, part I, c. 181), no person could by adverse possession acquire title to any portion of the right of way so granted by congress.</p> <p>The act last cited’changes the rule even as to causes pending on appeal at the time of its enactment.</p> <p>3. Limitations — Change of the Statute — Effect Upon Pending Causes — Prior to June 24, A. D. 1912, title to the way granted by act of congress to a railroad company could not be acquired by adverse possession, under the limitation laws of the state. The act of congress of that date ( Stat. ) providing that adverse possession of the way shall have the same effect as if the land had been granted absolutely, instead of as a right of way, changes the result, even as to causes in which, prior to its enactment the railroad company had recovered as against the adverse claimant, and the cause was pending on appeal at the date of the enactment.</p>

<p>Error to Denver District Court. — Hon. George W. Allen, Judge.</p>

<p>Appeal from Parle District Court. — Hon. M. S. Bailey, Judge. ,</p>

<p>Error to Pueblo District Court. — Hon. J. E. Rizer, Judge.</p>

<p>1. Elections — Ballot—How Voter’s Intention to be Ascertained— Under the statute (Rev. Stat. sec. 2236) neither the judges of the election nor the courts are authorized to go beyond what the voter has set down upon his ballot to ascertain his intention.</p> <p>It is not to he said that because different party organizations, bearing different names, and presenting different tickets were understood by the voters to mean the same party, one voting the straight ticket to one of these organizations, intended to vote for a candidate named in the ticket of another of such organizations, for an office for which no candidate was named on the ballot voted.</p> <p>2. Election Contest — Condition of Ballot Boxes — Burden of Proof —Where, in an election contest, the answer charges that the ballot boxes had been tampered with, the contestor traversing this allegation, and demanding a recount of the ballots, assumes the burden of proof.</p> <p>3. -Failure of Judges to Return the Ballots to the Box, after the canvas, held immaterial, where the evidence conclusively showed that the ballots had not been tampered with, and the contestor lost rather than gained by the recount.</p> <p>4. -Contestor Entitled to a recount of the Ballots, as of course. Clanton v. Ryan, 14 Colo. 419; Kindel v. Lebert, 23 Colo. 385 followed. (Rev. Stat. § 2316.)</p>

<p>1. Water Riqhts — Right of Appropriators in Conditions Existing at Bate of Appropriation — The appropriators, for irrigation, of water from a natural stream, having decreed priorities, are entitled to have the conditions existing upon the stream, at the date of their appropriations substantially maintained.</p> <p>2. —'—Seepage Water Part of the Stream — Waters seeping from the reservoir or other works of an appropriator, and which in their natural course flow to the stream and mingle therewith, are, from the moment of their escape, as much a part of the stream as after they have actually reached it. Such waters cannot be interrupted in,their course, and diverted from the stream to the prejudice of a prior appropriator for irrigation, below.</p> <p>The doctrine of the opinion is not to be unreasonably extended, or applied to conditions where it would effect inequitable results.</p> <p>The statute providing for the appropriation of seepage water and spring, waters, to be used on the lands of the appropriator, (Rev. Stat. sec. 3177)- is not involved.</p>

<p>Error to Phillips District Court. — Hon. H. P. Burke, Judge.</p>

<p>Appeal from Fremont District Court. — Hon. Charles Cavender, Judge.</p>

<p>Error to Dower District Court.- — -Hon. George W. Allen, Judge.</p>

<p>Appeal from Denver District Court. — -Hon. Hubert L. Shattuok, Judge.</p>

<p>1. Criminal Law — Murder—Information—An information charging murder includes all degrees of criminal homicide.</p> <p>2. -Wilful Assault. A policeman who, without justification strikes a citizen with his billy, in a manner calculated to produce death, but without deliberation or premeditation, is guilty of murder in the second degree, if death ensues.</p> <p>3. -Officer Resisting Escape — The statute (Rev. Stat. Sec. 1635) does not clothe an officer with authority to judge arbitrarily that it is necessary to take the life in order to prevent the rescue of his prisoner. He is not warranted in taking life unless there is an apparent necessity for it; and if he does so he is not permitted to take shelter behind his official character. The question of the absence or existence of the necessity is finally for the jury.</p> <p>4. --Writ of Error — Conviction of Degree of Crime Below that Charged — Information for Murder. The evidence warranting a conviction for murder in the second degree, .the accused has no ground to complain of a conviction of -manslaughter.</p> <p>5. Instructions — Refusal of Those Given in Other Words, is not error.</p> <p>6. Arrest — Unlawful—A citizen upon the public streets conducting himself in a quiet and peaceable manner, and not having committed any crime or misdemeanor, is not liable to arrest “for investigation.” No officer is clothed with this arbitrary power.</p> <p>7. Officer de Facto — Acts Valid — A mere minor may be an officer de facto. An oath administered by a minor acting as the clerk of a court is as binding as if he were an officer de jure.</p>

<p>• Error to Arapahoe District Court. — Hon. Robert E. Lewis, Judge.</p> <p> On Rehearing. </p>

<p>1. Will Contest — Dedimus—Sending Will out of State — Where the signature of the testatrix to the will is denied the question whether the original shall be sent out of the state is in the discretion of the court.</p> <p>What classes of witnesses are intended by Rev. Stat. § 7091; whether the section authorizes the transmission of the will to a place beyond the limit of the state; and whether the statute applies in a contest in the district court, not decided.</p> <p>2. 1 -Contest after probate — Burden of Proof — The admission of a will to'probate is a judicial act, and where the court has jurisdiction, like any other judgment, it ’is binding until reversed or vacated according to law. Therefore, in a contest, under the proviso to Rev. Stat. Sec. 7096, the burden of establishing the grounds of contest alleged, is upon the contestant.</p> <p>3. -Evidence — As to Testamentary Capacity — That the disposition made by a testatrix, of her property, is consistent with her situation, and in congruity with her affections, and previous declarations, is of no small force as to testamentary capacity.</p> <p>4. --As to Capacity and Undue Influence — The fact that after the execution of the will the testatrix, in person and alone, carried it to a bank, and left it upon deposit with instructions as to what should be done with it, and that on a former occasion, when she was. out of the presence of the principal beneficiaries, and at a long distance from their residence, she had made a will containing substantially the same bequests in their favor was held of special importance.</p> <p>5. -The Wisdom, -Justice, or Propriety of the Will, is not for the courts — It is sufficient if the forms of the law are observed at a time when the testator is of sound and disposing mind and memory.</p> <p>6. -Instructions — Certain beneficiaries named in the will were shown to .be intimate personal friends of the testatrix. The contestants were blood relatives. No error was discovered in an instruction that this intimate relation “does not place such beneficiaries in what is known as confidential or fiduciary relation.”</p> <p>7. -Construction of Instructions — Every part of the charge is to be considered in connection with other instructions upon the same subject.</p> <p>8. EvruBKCE — Photographs—Must Be Shoum to he Aueurate and Truthful — This rule is especially applicable where the genuineness of hand-writing is in question. The sufficiency of such preliminary proof is largely in the discretion of the court trying the issue. Where such testimony is conflicting the action of the trial court should not be disturbed.</p>

<p>Evidence — Competency—Action for a commission upon the sale of the stock of a jeweler. The vendor, being defendant, deposed that he had never employed plaintiff to effect a sale, never agreed to pay him a commission, and was not aware that he sent the purchaser to him. The purchaser testified that he agreed to purchase the stock only on condition that defendant would pay plaintiff’s commission. Held proper to prove as impeaching this testimony of the purchaser, his statements that he had paid plaintiff a commission, that he exhibited a receipt therefor, and that a writing produced was a true copy of the receipt so exhibited.</p>

<p>Error to Denver District Court.- — Hon. Greeley W. Whitfobd, Judge.</p>

<p>Error to Mesa District Court. — Hon. Sprigg Shackleford, Judge.</p>

<p>Error to Denver District Court.- — Hon. Greeley W. Whiteord, Judge.</p>

<p>Appeal from Fremont District Court. — Hon. Charles Cavender, Judge.</p>

<p>Error to Teller County Court. — Hon. Thornton H. Thomas, Judge.</p>

<p>Appeal from Costilla District Court. — Hon. Charles C. Holbrook, Judge.</p>

<p>1. Contributory Negligence — Proximate Cause — The contributory negligence of plaintiff, to defeat his action, must be the direct and proximate cause of the injury of which he complains. An instruction to this effect does not import that such contributory negligence must be the sole cause of the injury, but merely that, but for the negligence of plaintiff, the injury would not have occurred.</p> <p>2. Instructions — Construction—To he Taken as a Whole — A defective statement of the law in one point of the charge may be supplemented by what is contained elsewhere therein.</p> <p>An instruction which is not misleading is not error, though in defining negligence it departs from the form approved in our decisions.</p> <p>3. Passenger Carrier — Duty to Passenger — A corporation operating a street railway, is required, like other common carriers of passengers, to do all that human care, vigilance, and foresight, can reasonably accomplish, in view of the character and mode of conveyance adopted, to prevent injury to the passenger.</p> <p>4. Appeals — Harmless Error — Action for an injury attributed to the negligence of the defendant. There was no complaint that the award made by the jury was excessive. The admission of medical testimony to establish the permanency of the injury was held harmless even if erroneous.</p>

<p>Error to Denver District Court. — Hon. PIarry C. Biddle, Judge.</p>

<p>Error to Otero District Court. — Hon. C. S. Essex, Judge.</p>

<p>Error to Denver District Court. — Hon. Carlton M. Bliss, Judge.</p>

<p>1. Cbiminal Law — Homicide—Self Defense — One who is where he has the right to be is not under duty to flee if attacked. He may use sufficient force to repel the attack; but if after the assailant, having received no injury, flees, he pursues him, and inflicts a fatal wound, he is guilty of murder or manslaughter, as the jury may determine; and this, éven though the first shot fired by defendant was in necessary self-defense.</p> <p>2. -Instructions — Indictment for Murder. The deceased immediately upon the first shot fired by defendant, fled. The accused pursued him and inflicted fatal wounds. Held he was not entitled to an instruction based upon the assumption that the first shot produced death, where there was no evidence that such was the result of that shot.</p> <p>3. --Information — Signature of the Prosecuting Officer, typewritten, but followed by the name of his deputy, written with his own hand, is a compliance with Rev. Stat. § 1958.</p> <p>4. -Reprimand to Counsel for Defendant, provoked by the conduct of counsel in the examination of a witness, in defiance of the previous ruling of the court, and not relating to any matter pertinent to the case is harmless. •</p>

<p>Broker — Right to Commissions — A land broker, wko, acting in good faitb, produces to bis client a customer with whom he enters into a binding agreement for the exchange of his lands for those of the other party, is entitled to the agreed commission, even though the contract is induced1 by fraudulent misrepresentations of the other party to the exchange, and for this reason is rescinded by the client.</p>

<p>1. Writs of Error — Stipulation as to Facts Proven — In error to review a criminal conviction it was objected that the errors assigned could not be considered, because the testimony beard below was not presented in the record. But there was a stipulation of counsel as to the facts proven, and the question being one of immediate public interest, the court overruled this contention.</p> <p>2. Local Option — Sale—Delivery Without Prohibited Territory— One whose agent, acting by due authority, goes into anti-saloon territory, and there contracts to sell and deliver intoxicating liquors, and receives pay therefor, is guilty under the statute (Laws 1907, c. 198, §§ 10, 15, Rev. Stat. §§ 4103, 4108), though the liquors, consigned to the buyer, are delivered to a common carrier in another county and not within anti-saloon territory.</p>

<p>Error to the Denver District Court. — Hon. TIubebt L. Shattuck, Judge.</p>

<p>Error to Garfield District Court. — Hon. John T. Shumate,' Judge.</p>

<p>1. Certiorari — 'Where the Writ Lies — Certiorari cannot be made to perfQrm the office of a writ of error. Where a motion to vacate a judgment given in the county court, upon a cause of action within the jurisdiction of that court, is denied, the defendant is entitled to a writ of error, and certiorari does not lie.</p> <p>In a judgment confessed, under warrant of attorney the cause of action being certain promissory notes executed by defendant to plaintiff, if the defendant asserts that the notes were obtained by fraud he may also have relief against the judgment by a bill in equity. Por either reason certiorari is properly denied.</p> <p>2. Writ of Error — Proceedings Subsequent to Final Judgment, may be reviewed by writ of error to such judgment, i</p> <p>3. Appearance- — Promissory Note, with Warrant of Attorney — A promissory note with a clause authorizing any attorney to enter the appearance of the maker in any action brought thereon, the attorney’s appearance is a waiver- of service.</p> <p>And a motion to vacate a judgment, as obtained by mistake, inadvertance, etc., under Rev. code § 81, is a general appearance.</p>

<p>Criminal Law — Disturbance of the Peace — The. statute (Mills Rev. § 1881, Rev. Stat. § 1753) distinguishes the disturbance of a neighborhood from the disturbance of a family.</p> <p>Information for disturbing the peace and quiet of the neighborhood of one M. The evidence showed an altercation at a school house, at some distance from the residence of M. A conviction was vacated.</p>

<p>Supeejie Cottkt — Jurisdiction—Error to the Court of Appeals. A judgment of tlie court of appeals merely reversing a judgment of the district court, authorizing a change in the point of diversion of water, does not relate to a franchise or freehold of the petitioners; and where there is no award of money, and no provision of the state or federal constitution is brought in question, the supreme court has no jurisdiction to review such judgment of the court of appeals (Laws 1911, c. 107, § 6).</p>

<p>1. Landlokd and Tenant — Eviction—The tenant’s voluntary surrender of the premises is not an eviction.</p> <p>Nor is the landlord’s entry, after the abandonment of the premises hy the tenant. Especially is this true where such entry of the landlord is invited and consented to hy the tenant.</p> <p>2. -Concessions made by Landlord to New Tenant, After Surrender by a Former Tenant, prior to the lapse of his term must he borne hy the landlord.</p>

<p>1. Cbiminat, Law — Intoxicating Liquors — 'Construction of Statutes — The several statutes imposing licenses for the sale of intoxicating liquors in less than a designated quantity and specifying the times and places when and where sales may be made (Rev. Stat. §§ 1798, 1799, 1805, 3995, 3996, 4005,) are parts of' one system, and are to be construed so as to be harmonious and consistent in their several provisions.</p> <p>2. -Statute Construed — “Saloon” in Rev. Stat. sec. 1805 is used as defined in Rev. Stat. sec. 3996. And, as so used, means any place where spirituous or vinous liquors are sold by quantities less than one quart.*</p> <p>3. -Restaurant — The name by which a place is called does not, in law, fix its status. The character of a place is determined by the business there carried on, and by what habitually takes place therein. A restaurant kept solely as an eating, house, is not within Rev. Stat. sec. 1805. Otherwise if intoxicating liquors are there habitually sold to thé public. The comparative number of the sales o'f food, and of liquors;, or the comparative revenue derived from one ' or the' other, is not important. .</p>

<p>1. Constitutional Law — Special Assessments — To sustain a special assessment it must appear that a benefit has been occasioned to the premises assessed, equal to the burden imposed. And the benefit must be local in its nature, must specially enhance the value of the premises assessed, must be immediate, and not remote or contingent,- and of such character as to be seen, known, and traced.</p> <p>Bill to restrain the collection of a frontage tax imposed under the provisions of Sec. 9 of the act of 1905 (Laws 1905, 361, Rev. Stat. sec. 6811,) only upon the lots abutting upon the streets of the city through which the distributing pipes were laid. Considering that the main distributing pipes in the street upon which plaintiff’s lots fronted were laid by a former proprietor of the works, long prior to the purchase of such works by the municipality, that the service afforded since the purchase was not different and no better than before such purchase, Held that no benefit had been conferred by the mere transfer of the works to the municipality, nor in any respect for which such a tax may be imposed; that the expenditure of the tax would not confer upon the lots any special benefit whatever, and that whatever benefits had resulted or would result from the construction and maintenance of the works, enured to all the proprietors of the district proportionately, that therefore the assessment must be condemned as unauthorized. Held further that to sustain the frontage tax upon the theory that the proceeds would or might be applied to extinguish the indebtedness for the purchase of the works, would be to impose upon a portion of the proprietors of the district the cost of a purchase for the benefit of all.</p>

<p>1. Municipal Corporations — Special Assessments — To sustain a special assessment by a municipal corporation express charter authority must be produced.</p> <p>•--Frontage Tax to Maintain Water Works — The authority granted by paragraph 71 of sec. 2655 of the General Laws of 1877 to Municipal Corporations constructing water works, to levy a frontage tax upon vacant lots abutting upon the streets where the mains are laid, was taken away by the amendment of 1893. (Laws 1893, c. 160, Rev. Stat. c. 147, sec. 6525 par 71.)</p>

Petition for ivrit of certiorari and prohibition. • The California Milling & Mining Company Ltd., et al, commenced an action in the district court of Gilpin County against the Rocky Mountain National Bank, and others. To the amended complaint of plaintiffs separate demurrers were interposed by the defendants and sustained. Plaintiffs elected to stand by their complaint, and their action was dismissed.

<p>Evidence — Competency—Testimony of Witness at Former Trial— The testimony given by a witness at a former trial, though formally preserved in a bill of exceptions, is not admissible upon a second trial, merely upon the ground that the witness has forgotten the facts to which he formally testified, the witness being present, apparently in firm health, of sound mind, and his lack of memory not attributable to disease or old. age.</p>

<p>Error to Denver District Court. — Hon. George W. Allen, Judge.</p>

<p>1. Partnership Accounting — Duty of Referee — Referee appointed to take a partnership account on bill brought by the managing partner, reported that the books of the firm were not just, true, or correct, and without taking evidence, recommended that the action be dismissed. Held that the court properly set aside this report, and ordered a further reference.</p> <p>2. Referee’s Report — Where no specific or clear error in the referee’s report is made to appear, a decree thereon will not be disturbed.</p>

<p>1. Criminal Law — Information—Several Counts — It is proper to unite in one information counts charging an assault, an assault with a deadly weapon with intent to do bodily injury, and an assault with intent to commit murder, where all refer to the same transaction.</p> <p>2. -Evidence — Competency—To the rule that in the trial for one offense, evidence of another and different offense, or act, is not admissible is the exception, among others, that the evidence is admissible when the former offense or act tends to prove a design or purpose on the part of the accused which he probably accomplished or sought to accomplish in committing, the offense charged. Information for an assault upon one S., with intent to murder. The evidence for the accused was to the effect that he appeared upon the scene only after another had assaulted S., and that his entire conduct was that of a peace-maker.</p> <p>But the prosecution gave evidence that the accused came upon the scene with firearms, and applying a vulgar epithet to S., exhorted his assailant to “stamp him to death”; that he stopped the fight only because he saw two other men approaching, and shortly thereafter declared “this has been running seven years, and we finished it in fifteen minutes”.</p> <p>In view of the latter testimony it was held not improper to receive evidence that some seventeen months before the occurrence the accused tried to procure an assault to be committed upon S.</p> <p>3. "Writ of Error — Harmless Error — An instruction that one is presumed to intend the- natural consequences of her acts, and which applies that presumption to word spoken by the accused is not prejudicial, where the conviction is for an offense, which, the word manifestly tended to incite.</p> <p>4. -Harmless Error. The admission of evidence having no probative value or effect is harmless.</p> <p>-Conviction on Sufficient Evidence — Though contradicted will not be disturbed.</p> <p>5. -Plaintiff must Assign Error — The court will not consider an error not assigned. Though the judgment complained of is void the court will not vacate it of its own motion, where the opposing party insists that the judgment shall stand.</p> <p>6. -Judgment in Excess of Statute — The conviction being, for an assault and battery only, and both a fine and imprisonment being imposed, while the statutory imposition was in the alternative, held that if the accused should pay the fine he could not afterwards be imprisoned.</p>

<p>Error to Denver County Court. — Hon. H. C. Class, Judge.</p>

<p>Error to Phillips District Court. — Hon. II. P. Burke, Judge.</p>

<p>Error tó Adams District Court. — Hon. Charles McCall, Judge.</p>

<p>State Board oe Medical Examiners — Authority to Revolee License of a Physician — The statute (Rev. Stat. § 6068) is the sole source of authority of the board. In the phrase “obtaining a fee on the representation that a manifestly incurable disease can be permanently-cured,” the words “manifestly incurable disease,” refer to the disease, and not to the condition of the patient. The statute, so far as it assumes to authorize the state hoard to revoke the license of a physician for the cause here attempted to be specified is void for insufficiency and uncertainty.</p>

<p>1. Cotjkt of Appeals — Judgment—Effect—Where in a cause pending in the court of appeals the opinion declares what must be alleged, to warrant the award of an injunction to restrain a trespass to lands, and the plaintiff by subsequent amendment of his pleadings, sustained {¡y the evidence at the second trial, brings himself within the rule so prescribed he is entitled to the injunction.</p> <p>2. Judgment — Conclusive Effect — Where, by a final decree in a court of competent jurisdiction, with the parties before it, and which decree is never vacated or modified, an execution sale of lands is approved, and it is directed that a deed shall issue unless redemption be made by a day certain, errors in the decree can not be urged as a ground to assert title to the premises, no redemption having been made, and the sheriff’s deed having issued accordingly.</p> <p>3. Pleadings — Amendment—Where judgment being reversed, the cause is remanded to the district court for further proceedings according to law, the latter court may allow such amendment of the pleadings as justice requires. S. C. 44 Colo. 200, followed.</p>

<p>Appeal from the Denver District Court. — lion.' Harry C. Riddle, Judge.</p>

— Hon. Harry O. Riddle, Judge. This action was instituted by the appellee against P. W. Copeland and the appellant to recover damages sustained by her upon Juné 27th, 1908, occasioned by her falling down the elevator shaft in The Columbia Hotel, situate in the city of Denver. It is alleged that the accident was caused by the negligence of the defendants in permitting the elevator and appurtenances thereto to be and remain out of repair.

<p>Criminal Law — Information—Waiver of Defects — The accused was held to bail under preliminary examination in the county court, on charge of rape. In the district court he pleaded non cut. Later, without withdrawing his plea, and without leave of court, he moved to quash the information upon the ground (1) that no lawful preliminary examination had been had, (2) that the county court was without jurisdiction, (3) the information was not verified, and there was no affidavit on file upon which it could be based. Held, that the defects not being jurisdictional, in the sense that they could not be waived, were waived by the plea to the merits.</p>

<p>1. Criminal Law — Felony or Misdemeanor. Any offense which may be punished by imprisonment in the penitentiary, is, under sec. 4 of art. XVIII of the constitution, a felony. That the offense may be visited alternatively, by imprisonment or fine, does not change the rule. The offense prescribed by Rev. Stat. sec. 345, is a felony.</p> <p>2. Words and Phrases — Punishable, as used in see. 4, art. XVIII of the constitution, is identical in meaning with “liable to punishment.”</p> <p>3. Statutes — Construction—Statutes Adopted from Another State, but enacted in a form more nearly resembling the statutes of still other states, the interpretation of the courts of such other states should govern, especially when the opinion of the court of the state from which the statute was taken stands practically alone.</p> <p>4. Constitutional Law — Felony—The phrase “and none other,” in sec 4, art. XVIII of the constitution, means “no other offense.” The phrase “punishable by imprisonment” imports “liable to punishment.” Every offense which may be punished by death or imprisonment in the penitentiary is a felony, even though in the discretion of the court a lesser penalty may be inflicted. And though the legislature may expressly denominate the offense a high misdemeanor, or the like, it is still in law felony, the legislature having no power to depart from the constitutional classification.</p>

<p>1. Auditor — Duty to Audit and Adjust Against the State, for which No Appropriation Is Made — Under Rev. Stat. sec. 6239 whenever a claim against the state, recognized hy law, and for which no appropriation has been made, is presented to the auditor, it is his duty to audit and adjust it and when approved by the governor and attorney general, to give the claimant a certificate thereof.</p> <p>z. -Expenses of National Guard — -The pay of the officers and enlisted men serving, in the field, under the orders of the governor, to prevent the" violation of the laws of the state, and their subsistence and transportation, are reognized by law, within the meaning of the statute.</p> <p>3. Appropriation — What Is — An appropriation, within the meaning of section 33 of article V of the constitution is the setting apart, by legislative authority, of a particular sum of money for a particular purpose.</p> <p>4. -Continuing Appropriation — Considering that by Rev. Stat. sec. 4409 no limit is set to the amount which may be paid to the members of the National Guard or for their transportation, quarters, subsistence, medical attendance, etc., and that no provision is elsewhere made as to these matters, that there is no provision of law from which any designated amount can be computed as set apart for the purposes mentioned in the section, Held, it was not to be construed as a continuing appropriation.</p> <p>It was therefore the duty of the auditor to audit and adjust claims presented to him for the pay and expenses of the National Guard upon duty, under the orders of the executive.</p> <p>5. Supreme Court — Original Jurisdiction — The auditor of state having refused to audit and adjust claims presented to him for the pay, subsistence, transportation, and other expenses of the National Guard serving, in the field under the orders of the governor, for the preservation of order, and the prevention of violence, • held, that the question being one of a public nature, affecting the whole state, the court would assume original jurisdiction of a petition by the governor, in his official capacity, for mandamus, to compel the auditor to act.</p> <p>6. Mandamus — Relator—Where an officer of the executive department refuses to perform a duty imposed upon him by statute, and in the performance of which the public are interested, the governor is the proper party to institute, as relator, proceedings by mandamus to compel him to act, when the performance of the duty by the officer refusing is necessary before the governor can discharge a duty imposed upon him.</p> <p>7. Officer Assuming Inconsistent Positions — -A public officer against whom mandamus is sought, to compel him to perform a public duty, will not be beard to both deny tbe duty, and assert that he is ready and willing to perform’ that duty.</p>